Fenech, G. v Sterling, R

[1985] FCA 460

Re: GEORGE FENECH and JULIAN FENECH
And: ROBERT STERLING
No. G344 of 1983
Federal Court Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Federal Court Practice - claim for damages under s.87(1A) and s.87(2) of Trade Practices Act, 1974 - claim for interest prior to enactment of s.51A of the Federal Court of Australia Act, 1976 - whether s.79 Judiciary Act, 1903 picks up s.94 Supreme Court Act, 1970 (NSW) - whether interest part of measure of compensation under s.87(2)(d) of Trade Practices Act.

Nella v. Kingia Pty. Ltd., unreported, Toohey, J., 6 August 1985 - con.

Sanford Pty. Ltd. v. Dainford Ltd. (1984) 54 ALR 179 - con.

HEARING

SYDNEY
#DATE 12:9:1985

ORDER

The respondent pay to the applicants the sum of $3,975.93. Reserve liberty to the applicants to apply for further relief on such notice as a Judge shall allow.

That the respondent pay to the applicants their costs of the proceedings other than costs already reserved by Davies, J.

Direct that the applicants serve upon the respondent personally a sealed copy of these orders and Reasons for Judgment.

Reserve liberty to the respondent to apply within 14 days of service upon him of the documents mentioned in order 3 to set aside orders 1 and 2.

JUDGE1

The facts of this case which are relevant for present purposes were summarised as follows in the Reasons for Judgment of the Full Court (Woodward, St.John and Spender, JJ.) handed down on 29 October 1984 (reported in (1984) 57 A.L.R. 98 at pp.99-100): The applicants, along with a number of other people, were induced by a series of false representations to invest in a large land development project near Ballarat in Victoria. This occurred in 1975. The investors believed they were getting a half-acre piece of land for themselves, on which one or two houses could be erected, and which would appreciate rapidly in value as the project developed. Pursuant to the contract which the applicants signed on 12 November 1975, they paid a deposit of $650 on the same day and the balance of purchase money, namely $30OO, on 21 November 1975. In fact the scheme was little better than a sham, because the company purporting to sell that land, Robert Sterling Pty. Ltd., did not own it, there was no planning permission to use it for residential purposes, no sub-division had been approved, and all the applicants received for their money was a document headed "Memorandum of Title" which proclaimed that they owned "as tenants in common, 4/80ths in the whole of the land" which was then imprecisely described by reference to the Contract of Sale, which in turn spoke only of "20 acres or thereabouts being part of" the land contained in an identified certificate of title.

1. The representations complained of were made either in written advertisements or by a salesman employed by the selling company, which was a company of which the respondent was managing director…